Last Minute Pointers in Political and International Law

Critical Areas in Political and International Law

by Attorney Victoria V. Loanzon
U.P. College of Law
November 1, 2018

I
The Philippines acceded to the Rome Statute. Is the Philippines effectively a member of the
International Criminal Cour
Answer: Accession means that a state consents to be bound by an international agreement
like the Rome Statute. The Philippine Constitution, however, requires that the Senate must
concur by way of Resolution the Philippine accession to the Rome Statute so the mere
accession will not necessarily result in the membership to the ICC.

Related Topics:
1. Adoption: It is an international act by which the negotiating States agree as to the
text of the proposed treaty. Under the Vienna Convention on the Law on Treaties,
“the adoption of the text of treaty takes place by the consent of all the states
participating in its drawing up,” unless adoption of the text of a treaty is done
international conference; in which case, adoption takes place by two-thirds vote of
the States present and voting.

2. Reservation: Under the Vienna Convention, it is “a unilateral statement, however

phrased or named, made by the state, when signing, ratifying, accepting, approving,
or acceding to a treaty, whereby it purports to exclude or modify the legal effect of
certain provisions of their treaty in their application to that State.”
Basis: This is an act of sovereignty in determining the state’s relations with other
states or with the international community as a whole.

3. Renunciation: This refers to rejection or repudiation of in whole or in part of

certain treaty provisions. Under Article 6(1) of the Vienna Convention on the Law
on Treaties, “ a party may invoke impossibility of performing a treaty as a ground
for terminating or withdrawing from it if the impossibility results from permanent
disappearance or destruction of an object indispensable for the execution of the
treaty. If the impossibility is temporary, it may be invoked only as a ground for
suspending the operation of a treaty.”
Under 6(2), however, provides that impossibility of performance cannot be invoked
as a result of a breach of an obligation under a treaty.

4. Jurisdiction of the ICC: The International Criminal Court (ICC) shall have the
power to exercise jurisdiction over persons for the most serious crimes of
international concern. Its jurisdiction covers the crime of genocide, crimes against
humanity, war crimes and the crime of aggression as defined in the Statute (Article

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 5, Rome Statute). (Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622,
July 6, 2005, En Banc [Puno])

5. Nes bis in idem: This principle provides that “except as provided in the Rome
Statute, no person shall be tried before the ICC with respect to conduct which
formed the basis of the crimes for which the person has been convicted or acquitted
by the Court. (Article 20, Rome Statute)

Exceptions:
(a) When the Prosecutor appeals the decision of conviction or acquittal; or
(b) When there is a revision in the final judgment of conviction or sentence by the
Court’s Appeal Chamber.

6. Principle of Complementarity: By this principle under the ICC statute, national

courts shall have primacy over the ICC with respect to international crimes within
its jurisdiction.
The tenth preambular paragraph of the ICC Statute emphasizes that “the
International Criminal Court x x x shall be complementary to national criminal
jurisdiction.” This principle becomes operative in Article 1 of the Statute. This,
however, has to be correlated with the sixth preambular paragraph of the Statute
which declares that “it is the duty of every State to exercise its criminal jurisdiction
over those responsible for international crimes.”
The principle of complementarity produces a correlation of the ICC jurisdiction
with that of every state over international crimes under the ICC Statute.
The principle of complementarity gives primacy to national jurisdiction x x x.
The principle of ne bis in idem in Article 20, paragraph 3, of ICC Statute
strengthens complementarity, thus: Unless the proceedings in the national court is
for the purpose of shielding the person concerned from liability, or not conducted
independently or impartially,
“No person who has been tried by another court for conduct … [constituting crimes
within its jurisdiction] shall be tried by the Court with respect to the same conduct x
x x.” (Magallona, Fundamentals of Public International Law [2005 ed.])

7. Genocide: Acts which are committed with intent to destroy, in whole or in part, a
national, racial or religious group, as such. (Article II of the Convention on the
prevention and Punishments of the Crime of Genocide) It characterized as a crime
under international law. Under Article III of the Convention the following acts are
punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide; and
(e) Complicity to commit genocide.
Acts include:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
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 (c) Deliberately inflicting on the group conditions of life calculated to bring
about the physical destruction in whole or in part;
(d) Imposing measure intended to prevent birth within the group; and
(e) Forcibly transferring children of the group to another group

Who may be punished: individual persons and they “shall be punished, whether they are
constitutionally responsible rulers, public officials or private individuals.”

7. War Crimes: War Crimes are violations of laws or customs at war. Such violations shall
include, but not limited to murder, ill-treatment or deportation to slave labor or for any
other purpose of civilian population of or in occupied territory, murder or ill treatments of
prisoners of war or persons on the seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns or villages, or devastation not justified by
military necessity.
(Vinuya v. Executive Secretary: public apology from Japan and additional reparations for
the “comfort women.”)

8. Crimes against Humanity: Crimes against humanity are certain acts that are
deliberately committed as part of a widespread or systematic attack or individual
attack directed against any civilian or an identifiable part of a civilian population.
The first prosecution for crimes against humanity took place at the Nuremberg
trials. (Kuroda v. Jalandoni, 83 Phil 171: Supreme Court expressly ruled out the
Doctrine of Transformation when it declared that generally accepted principles of
international law form a part of the law of the country even if the Philippines was
not a signatory to the convention embodying them. Section 2 of Article II of the
Philippine Constitution is not confined to the recognition of rules and principles of
international law as contained in treaties to which our government may have been
or shall be a signatory.)

9. Jus cogens: Jus cogens literally means “compelling law.” As defined, it means a
peremptory (mandatory) norm of general international law which is recognized and
accepted by the international community of States as a norm that does not permit of any
derogation and which can be replaced or modified only by a subsequent norm of the same
character.
Under the Vienna Convention on the Law of Treaties, a treaty that violates a jus cogens
norm will have to be invalidated.

10. Erga omnes: Erga omnes literally means “in relation to the whole.” An erga omnes
refers to an obligation of a State towards the international community of States as a whole.
Between an erga omnes obligation and an obligation of a State towards another State
pursuant to a treaty, an erga omnes is superior.

II.
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Under the Constitution, a treaty requires the concurrence of the Senate. Will the
withdrawal from a treaty like the Rome Statute and the Philippine membership in the ICC
require a similar action?
Answer: If the President has been mandated by the Constitution as the sole authority to
ratify a treaty, it would necessarily include the power to withdraw from it. This is in
keeping with the principle that this exercise of sovereign power over foreign relations to
which the President is answerable only to the people of the Philippines under the political
question doctrine.
However, if it is argued that with the concurrence of The Senate is necessary for the
effectivity of the treaty under domestic law, then it would require a similar action to
withdraw from treaty.

Related Topics:
1. Pacta sunt servanda: With reference to international agreements, pacta sunt servanda
means that "every treaty in force is binding upon the parties to it and must be performed
by them in good faith. This entitles states to require that obligations be respected and to
rely upon the obligations being respected.

2. Most Favored Nation Clause: In international economic relations and international

politics, "most favored nation" (MFN) is a status or level of treatment accorded by
one state to another in international trade. The term means the country which is the
recipient of this treatment must nominally receive equal trade advantages as the "most
favored nation" by the country granting such treatment. (Trade advantages include
low tariffs or high import quotas.) In effect, a country that has been accorded MFN status
may not be treated less advantageously than any other country with MFN status by the
promising country. The members of the World Trade Organization (WTO) agree to accord
MFN status to each other. Exceptions allow for preferential treatment of developing
countries, regional free trade areas and customs unions. Together with the principle
of national treatment, MFN is one of the cornerstones of WTO trade law.

3. Rebus sic stantibus: In Public International Law, rebus sic stantibus is the legal
doctrine allowing for a treaty to become inapplicable because of a fundamental change of
circumstances. The doctrine is essentially an "escape clause" to the general rule of pacta
sunt servanda (promises must be kept).

III.
What is the national territory of the Philippines?
Answer: The national territory comprises the Philippine archipelago, with all the islands
and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains,
including its territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal waters of
the Philippines. (Article I, 1987 Constitution)

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Related Topics:
1. Relevant laws which define the Philippine territory:
Article I, 1987 Constitution defines the National Territory of the Philippines. The following
diplomatic instruments are likewise relevant in defining the Philippine Territory:
(a) Treaty limits: Treaty of Paris, Art. III
(b) Treaty between Spain and U.S. concluded at Washington on November 7, 1900 and
that between U.S. and Great Britain on January 2, 1930
The Philippine territory likewise considers the method of determining baselines under R.A.
No. 3046, June 17, 1961, R.A. No.5446, September 8, 1968; and R.A. No. 9522( Philippine
Archipelagic Baselines Law) , March 10, 2009, using the straight line approach.
Other territories over which the Philippines has sovereignty or jurisdiction have been
included in the following presidential issuances:
(a) P.D. No. 1596, June 11, 1978
(b) Two Hundred-Mile Exclusive Economic Zone under P.D. No. 1599, June 11, 1978

2. Archipelagic doctrine: The archipelagic doctrine is a concept which considers the entire
archipelago as one integrated unit of territory, not as comprising various disparate and
separate islands.

3. Archipelago: A group of islands including parts of islands, interconnected waters and

natural features which are so closely interrelated that such islands, waters and natural
features form an intrinsic geographical, economic and political entity or which historically
have been regarded as such. (Article 46, UNCLOS)

4. The Bangsamoro Juridical Entity: The Bangsamoro Juridical Entity is not a political
subdivision within the contemplation of the Constitution but all the provinces, cities,
municipalities and barangays form part of the Philippine territory. It is more in the nature
of an associative state under public international law which can eventually gain statehood.
The Court held that no province, city, or municipality, not even the ARMM, is recognized
under our laws as having an associative relationship with the national government. Indeed,
the concept implies powers that go beyond anything ever granted by the Constitution to
any local or regional government. It also implies the recognition of the associated entity as a
state. The Constitution, however, does not contemplate any state in this jurisdiction other
than the Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence. (Consolidated Petitions: Province
of Cotabato v. G.R.P., G.R. No. 208566, October 14, 2008)

5. Constitutionality of the BBL: Congress passed the Bangsmoro Basic Law and the
President already approved it. The BBL has not been implemented and no one has raised
the issue of its constitutionality. At the moment, it enjoys the presumption of
constitutionality. (Cruz v. Secretary of DENR – constitutionality of the IPRA Law)
6. Associative State: An association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate, delegates certain
responsibilities to the other, the principal, while maintaining its international status as a
state. Free associations represent a middle ground between integration and independence.

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In international practice, the “associated state” arrangement has usually been used as a
transitional device of former colonies on their way to full independence.

IV.
The Philippines wanted to settle the seeming conflict with China regarding the West
Philippine Sea. China refused.
The Philippines asked China if it is willing to ask a third party to settle the conflict between
them. Once again, China refused.
What is the remedy of the Philippine government given the continued refusal of China to
settle the conflict?
Answer: The Philippines can file an arbitration case as it did in the “The Republic of the
Philippines v. The People’s Republic of China.” The Philippines challenged China’s nine-
dash line claim in the South China Sea.
On October 29, 2015, the Permanent Court of Arbitration has ruled that it has jurisdiction
on the Philippines’ case questioning the legality of China’s enormous claims in the South
China Sea.
The Philippine case is anchored on the 1982 UNCLOS which allows coastal states the right
to manage, explore and exploit areas within its 200-nautical mile exclusive economic zone.
It also tackles the status of certain maritime features in the South China Sea (which the
Philippines calls the West Philippine Sea) and the maritime entitlements they are capable of
generating, and the lawfulness of certain actions by China in the South China Sea that are
alleged by the Philippines to violate the UNCLOS.
The Philippines said China’s assertion of having “indisputable” and “historical” claims
that extends beyond what is allowed by the UNCLOS infringes on the country’s maritime
jurisdiction and prevents it from exercising its right under the convention.
Related Topics:
1. UNCLOS and the Maritime Zones of Coastal States: The UNCLOS is a product of
international negotiation that seeks to balance State sovereignty (mare clausum) and the
principle of freedom of the high seas (mare liberum). The freedom to use the world’s
marine waters is one of the oldest customary principle of international law (Anne Bardin,
“Coastal State’s Jurisdiction Over Foreign Vessels” 14 Pace Int’l. Rev. 27, 28 [2002]). The
UNCLOS gives to the coastal State sovereign rights in varying degrees over the different
zones of the sea which are:
1) internal waters,
2) territorial sea,
3) contiguous zone,
4) exclusive economic zone, and
5) the high seas.

It also gives coastal states more or less jurisdiction over foreign vessels depending on where
the vessel is located (Id. at 29).

2. Maritime Zones under UNCLOS: The following are the maritime zones under
UNCLOS:
(a) Internal waters of the Philippines consist of waters around, between and connecting
the islands of the Philippine Archipelago, regardless of their breadth and dimensions,

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 including the waters in bays, rivers and lakes. No right of innocent passage for foreign
vessels exists in the case of internal waters. (Harris, Cases and Materials on
International Law, 5th ed., 1998, p. 407).
Under UNCLOS, however, warships enjoy a right of innocent passage when a portion of
the territorial water of the coastal state is used for international navigation.
Article 42(2) of UNCLOS provides that there shall be no suspension of innocent passage
through straits used for international navigation. The right of the coastal state to
suspend the same requires that the coastal nation must publish the same and without
any publication, it cannot insist to suspend the use of such body of water. A claim that
suspension of innocent passage is necessary for national security may be cited by the
coastal state. Upon the other hand, if a war ship delayed its right of innocence, the same
may justified under Article 18(2) of UNCLOS if the delay was caused by rendering
assistance to persons or ship in distress.
(b)Territorial Sea which is 12 nautical miles from the baseline.
(c) Contiguous zone is the zone contiguous to the territorial sea and extends up to 24
nautical miles from the territorial sea and over which the coastal state may exercise
control necessary to prevent infringement of its customs, fiscal, immigration or
sanitary laws and regulations within the territory or territorial sea. (Article 33 of
UNCLOS)
(d) Exclusive Economic Zone is the zone extending up to 200 nautical miles from the
baselines of a state over which the coastal state has sovereign rights for the purpose
of exploring and exploiting, conserving and managing its natural resources, whether
living or non-living, of the waters super adjacent to the seabed and of the seabed
and subsoil and with regard to other activities for the economic exploitation and
exploration of the zone. (Articles 56 and 57, UNCLOS)

4. Navigable rivers under UNCLOS: Inland or internal waters; Territorial Sea or maritime
belt; and High Seas or Open Seas (belongs to the humankind; cannot be owned by any
state)

5. Activities permissible in the high seas: Activities in the high seas include, among others,
navigation, flight over them, laying submarine cables and papers, fishing, research, mining
or pursuing any lawful business.

6. Freedom of Navigation: Freedom of navigation (FON) is a principle of customary

international law which states that ships flying the flag of any sovereign state shall not
suffer interference from other states while in international waters. This right is now also
codified as Article 87(1) a of the 1982 United Nations Convention on the Law of the Sea.

7. Flag State and Flag of Convenience: Flag state means a ship has the nationality of the
flag of the state it flies, but there must be a genuine link between the state and the ship.
(Article 91, UNCLOS) while flag of convenience refers to a state with which a vessel is
registered for various reasons such as low or non-existent taxation or low-operating costs
although the ship has no genuine link with that state. (Harris, ibid. p.425)

8. Arbitral Award to the Philippines: The following are the significant ruling of the PCA:

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 (a) The so-called "9-dash line" of China is invalid. The Tribunal declared this “9-
dash line” as a clear violation of the UNCLOS. This is very important. If China’s
claim was upheld, the Philippines would have lost 80% of its EEZ in the West
Philippine Sea.
(b) Reclaimed islands have no exclusive economic zone. The Tribunal found that it
could – without delimiting a boundary – declare that certain sea areas are within the
exclusive economic zone of the Philippines, because those areas are not overlapped
by any possible entitlement of China.
(c) China has behaved lawfully. China had violated the Philippines' sovereign rights
in its exclusive economic zone. The Tribunal further held that Chinese law-
enforcement vessels had unlawfully created a serious risk of collision when they
physically obstructed Philippine vessels.
(d) Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone
and continental shelf of the Philippines. The Tribunal ruled that all constructed
infrastructure in the reef and shoal should now be turned over to the Philippines.
(e) China’s non-participation will not affect the jurisdiction of the tribunal. Article 9
of Annex VII UNCLOS, Default of appearance, and Article 25 of the Rule of
Procedure of the Arbitral Tribunal both state that the non-appearance of one party
will not constitute a bar to the proceedings and at the same time require the tribunal
to “satisfy itself that it has jurisdiction and that claim is well founded in fact and in
law.”
The Tribunal ruled that China’s refusal to appear does not negate the consent that it
has given to the compulsory jurisdiction of the arbitral tribunal when it signed the
UNCLOS.
(f) Beijing has damaged the environment. China's large-scale land reclamation has
"caused severe harm to the coral reef environment and violated its obligation to
preserve and protect fragile ecosystems.”
(g). Island building should have stopped during the dispute process. The panel said
it had no jurisdiction over the military standoff at Second Thomas Shoal, where
Chinese and Philippine military and law enforcement vessels are locked in
confrontation.
However, "China's recent large-scale reclamation and construction of artificial
islands was incompatible with the obligations on a state during dispute resolution
proceedings, insofar as China has... destroyed evidence of the natural condition of
features of the South China Sea that formed part of the Parties' dispute."

9. Enforcement of Award: The UNCLOS dispute settlement system does not contain an
enforcement mechanism comparable to that of the ICJ with the Security Council, at least
in theory. This means that should China refuse to comply with a decision perceived to be
unfavorable to its interests, it is unlikely that there can be any legal sanctions against such
non-compliance.
The reaction of non-appearing States in the aftermath of an adverse decision has been
varied.
Despite affirming its rejection to the judgment of the Court, some non-appearing parties
have eventually taken courses of action that were in compliance with the final award.

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10. Matters not covered in the Resolution of the Philippine West Philippine Case are issues
relating to:
(a) territorial sovereignty
(b) territorial delimitation
(c) military activities

11. Binding Effect of Decision on China: The arbitral decision is binding to China despite
the fact it does not recognize it.

12. Options for the President to Enforce the Arbitral Decision: The Philippines renounces
war as an instrument of national policy. The President may negotiate through pacific
means on the settlement of the conflict. The Philippines may likewise consider filing
another case before the International Tribunal on the Law of the Seas or the International
Court of Justice.

V.
In support of the President’s desire to shift to a federal form of government, the Speaker of
the House proposed to the coalition of majority of its members to propose the revision of
the 1987 Constitution by convening the House of Representatives and the Senate into a
constituent assembly. Through the years the number of members of the House has
increased to 284, while the Senate has a constant membership of 24. The Constitution
provides that Congress may propose amendments or revisions upon a vote of three-fourths
of all its members. How is the 3/4 vote to be determined, from Congress as a whole, or from
the House of Representatives and the Senate voting separately?
Answer: They must vote separately. Congress is a bi-cameral body. The Senate’s
membership of 24 is constant despite the fact that only 23 posts are only filled up at this
time.

Related Topics –
1. Federalism - Federalism is the mixed or compound mode of government, combining
a general government (the central or 'federal' government) with regional
governments (provincial, state, cantonal, territorial or other sub-unit governments)
in a single political system. Its distinctive feature is a relationship of parity between
the two levels of government established. It can thus be defined as a form of
government in which there is a division of powers between two levels of government
of equal status.

2. Presidential Form of Government – The presidential form of government recognizes

the principle of separation of powers lodged in the three branches of government;
the doctrine of checks and balances; and the adoption of blending of powers. It is
characterized as a unitary form of government.

3. Distinguish between amendment and revision of the Constitution.

Amendment – An addition or change within the lines of the original constitution as
will effect an improvement, or better carry out the purpose for which it was framed;
a change that adds, reduces or deletes without altering the basic principles involved;

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 affects only the specific provision being amended. [Lambino v. COMELEC, G.R.
No.17415, October 25, 2006]
Revision – A change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances; alters the
substantial entirety of the constitution, as when the change affects substantial
provisions of the constitution. [Id.]

4. Tests to be applied: (1) Quantitative test - The Court examines only the number of
provisions affected and does not consider the degree of the change.
(2) Qualitative test – The Court looks into the qualitative effects of the proposed change in
the constitution. The main inquiry is whether the change will “accomplish such far
reaching changes in the nature of our basic governmental plan as to amount to revision.”
The changes include those to the “fundamental framework or the fundamental powers of
its branches,” and those that “jeopardize the traditional form of government and the
system of check and balances.” Whether there is an alteration in the structure of
government is a proper subject of inquiry. [See Lambino, supra.]

5. Distinguish between referendum and initiative

Referendum: Congress or the local legislative body refers to the electorate a proposed law
for their approval.
Initiative: The electorate proposes either a national law or an ordinance.
6. Sec. 2 [a] of RA 6735 otherwise known as the Initiative and Referendum Act for the
following ways by which sovereignty may be exercised directly by the people:
(1) Initiative on the Constitution
(2) Initiative on statutes
(3) Initiative on local legislation
7. Ratification Process: There are two steps in the amendatory process: (1) proposal, and
(2) ratification.
COMELEC conducts the plebiscite to determine if the people will disapprove or approve
the draft Constitution.
Note: There is no piece meal approval by the people. (Relate this to the rules on
interpretation of the Constitution.)
Effectivity: On the date that the people cast their vote and not on the date the results of the
voting were announced.

8. Legislative Work: Members of Congress will continue to perform their primary mandate
of enacting laws.

VI.

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Considering the number of political dynasties in the country, Pag-Asa ng Bayan, a group of
civic-minded individuals, decided to take matters into their own hands. Pag-Asa ng Bayan
insists that political dynasties must be defined. Some of the members proposed that they
amend the Constitution through People’s Initiative. Other members who have misgivings
about the intention to conduct a People’s Initiative argued that there is no enabling law yet
which provides for the mechanics of People’s Initiative.
A. Under the facts above, is there a need to amend the Constitution? Why?
Answer: No. The provision in the Constitution mandates that political dynasty must be
defined by law.
B. Is the argument of the other members correct that there is no enabling law defining
political dynasty? What is their legal option under this premise?
Answer: Yes, the argument is correct. They may propose the adoption of a national
legislation defining political dynasty through people’s initiative.

Related Topics:
1. Self-executing and non-self-executing provisions – General Rule: Unless otherwise
provided, provisions are self-executory

2. Process of enacting law: 3-reading rule

3. Journal and Record of Proceedings: Both reflect what transpired in the sessions

4. “sine die” doctrine – “stop the clock policy” on the last session day (Pons v. People)

5. Parliamentary Procedure – Internal Rules of Congress are not subject to review by

the Court

VII.
Governor Santos lost his bid for a third term. Before relinquishing his post, Governor
Santos promoted about ten employees to the Provincial Disaster Preparedness and
Management Office (“PDPMO”). The ten employees have been with the provincial
government for at least six months before the election as regular employees. Mr. Reyes, the
incoming governor, refused to recognize said action of the former governor, claiming that
the appointments of the ten employees are prohibited pursuant to the midnight
appointment ban provision of the Constitution. The ten employees filed an action before
the Civil Service Commission. They argued that the prohibition governing midnight
appointment ban applies only to the President. Is the argument of the ten employees
tenable?
Answer: Yes, the argument is tenable but the approval of mass appointments after election
is not valid. The prohibition covered under the concept of midnight appointment applies
only to the President and further limited to executive positions only.
Related Topics:
1. Types of Public Officers: elective and appointive
2. Security of Tenure: No public officer can be removed without due process of law. There
must be just cause for removal.

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3. Merit and Fitness: All appointments must be based on eligibility and qualifications for
the positions.

4. Term Limits: Strict observation of term limits –

(a) Constitutional Provisions: 7-year term for members of the CSC, COMELEC
and COA
4-year term of the regular members of the JBC
7-year term for the Ombudsman and his Deputies
1 term of 6 years for the President
2 terms of 6 years each for the Vice-President and Senators
3 terms of 3 years each for Congressmen
(b) Statutory Provisions
(c) Mandatory retirement age
PNPA graduates and PMA graduates: 56 years old
Members of the Judiciary: 70 years old
Other public officers: 65 years old.

5. Separation from Service

(a) Expiration of the Term
(b) Reaching the mandatory age of retirement
(c) Administrative Order (CSC, S.C., Ombudsman, Office of the President)
(d) Judicial Decisions
(e) Impeachment: Articles of Impeachment must be voted upon by the members of
the House of Representatives unless 1/3 of the members sign the Impeachment
Complaint.
Impeachment is tried by the Senate. It decides whether or not the allegations in
the Articles of Impeachment merit the dismissal of the public official
(f) Quo Warranto Proceedings: Action must be initiated by the Office of the Solicitor
General.
General Rule: Petition must be filed within one from the date the appointment
was issued.
Exception to the Rule: The one year prescription period will only run one year
from the discovery of the infirmity. (Republic v. Sereno)

6. CSC as Central Personnel Agency: Reviews all appointments based on eligibility and
qualifications but cannot substitute its own judgment to that of the appointing
authority.

7. “Mass Appointments” vs. Midnight Appointments (De Castro v. JBC contrasted with
Nazareno v. Dumaguete City)

8. Appointments in the Judiciary – No clustering (Aguinaldo v. Pres. Aquino)

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9. Appointing powers of the President: The JBC cannot limit the appointing powers of the
President by clustering the nominees in the vacancies in the judiciary. (Judge Philip
Aguinaldo v. President Aquino)
Where the law prescribes standards, the President must comply with the standards.
(Almario v. Executive Secretary on the nominees governing the recognition of National
Artists)

10. Permanent and Ad interim appointment: Ad interim appointment issued by the

President during the recess of Congress partakes of permanent appointments.

11. Republic v. Sereno: de facto and de jure officer

The acts of de facto Chief Justice Sereno will be considered valid prior to the decision of
the Court declaring that her appointment was null and void for not complying with the
requirement of filing SALN while being employed with government. (This is
comparative to the application of the operative fact doctrine.)

12. R.A. 3019 – Anti-Graft and Corrupt Practices Act

Emphasize issue on conflict of interest/ immoral conduct (Mejia v. Sheriff of the
Court – Del Castillo decision)
The prohibition and disqualifications under Section 13, Article VII must be strictly
observed.
Disclosure is not sufficient. There must be divestment of any interest.

VIII.
Several months before the end of the present Congress, Bernardo was invited by the Senate
to shed light on the alleged smuggling of P6.2B worth of prohibited drugs. Bernardo had
been identified in the news as the principal suspect responsible for the entry of subject
prohibited drugs. During the hearing, Bernardo refused to answer any question during the
congressional hearing. The Senate cited Bernardo for contempt and ordered him detained
at the Pasay City Jail. While Bernardo was languishing in Pasay City Jail, the Senate
adjourned. Can the Senate continue to detain Bernardo until he cooperates in the
congressional inquiry?
Answer: Bernardo must be released as soon as the Congress adjourns its session. He enjoys
the constitutional guarantee of the right to liberty.

Related Topics:
1. Question Hour: This may be requested either by the Executive Branch or the Congress.
Questions must be prepared before the date set for the Question Hour.

2. Congressional Inquiry: The inquiry must be in support of a proposed law.

3. Parliamentary Procedure – Joker Arroyo v. Speaker Jose De Venecia: The Supreme

Court cannot scrutinize the parliamentary rules of Congress as they consist of internal

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 rules. If the Supreme Court reviews the internal rules of Congress, it violates the
principle of separation of powers.

4. Discipline of Members: The suspension and the expulsion can only be exercised by the
Committee on Ethics of Congress. Being a political act, the action of the Committee on
Justice is not subject to review of the Court.

5. Arnault v. Nazareno overturned by Balag v. Senate – the detained person must be

released when Congress is adjourned.

6. Amnesty granted to Trillanes/Rebellion as a Crime

7. Immunities of Members: Freedom of Arrest and Privilege Speech (Pobre v. Defensor-

Santiago)

IX.
The numerous “tokhang” incidents prompted #NeverGiveUp, a civic group, to institute an
action against the incumbent President. #NeverGiveUp believes that the “tokhang” victims
deserve justice and a successful prosecution will eventually end the spate of killings.
#NeverGiveUp gathered sufficient documents and when charges were about to filed against
the President, the Chief Presidential Counsel sought to restrain any such action, especially
criminal cases, from being filed against the President, arguing that the President is immune
from suit during his incumbency and that he could not be charged with a crime where
conviction results in removal from office as the only way to remove him is to have him
convicted in an impeachment proceeding. Are the arguments of the Chief Presidential
Counsel valid?
Answer: The arguments of the Chief Presidential Counsel are valid. Under the residual
powers of the President, he enjoys absolute criminal immunity during his tenure of office.

Related Topics

1. Sovereign Immunity: jus imperii and jus gestionis

2. Diplomatic Immunity: Absolute and Functional
3. Immunity of Public Officers: proof of discharge of duties
4. Liability of Public Officers: acts beyond scope of authority and acts done in bad
faith will subject the officer personally liable for damages (Republic v. Spouses
Benigno – the state is not bound the negligence of its agents.)
5. Suability and liability (U.P. v. Hon. Dizon)

X.
The Congress enacted the Cybercrime Prevention Act to regulate access to and use of
amenities of the cyberspace. While the law’s general policy is to protect the interests of
netizens, some of its provisions were also perceived as impermissible as they invade and
impair widely cherished liberties. Before the law can even be implemented, the Cybercrime

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Prevention Act was challenged before the Supreme Court by a group of netizens who felt
threatened, for themselves as well as for others who may be similarly affected. The Solicitor
General opposed the petition on the ground that the Court cannot exercise its power of
judicial review since there has yet been no violation yet of the law and that the petitioners
have no locus standi because they do not claim to be in imminent danger of being
prosecuted under the new law. Can the Supreme Court proceed to decide the case even if
the law has not yet become effective?
Answer: Yes, the Court can take cognizance of the case. The law has been approved and
therefore be enforced. (Compare this to a Petition for Declaratory Relief.)

Related Topics:
1. Power of Judicial Review
2. Judicial Restraint
3. Judicial Legislation
4. Judicial Supremacy
5. Judicial Stability
6. Expanded Power of Judicial Review

XI.
The Mayor of Laoag City entered into a Memorandum of Agreement with Phoenix
Corporation, a wholly-owned French corporation wherein it allowed Phoenix Corporation
to conduct seismic studies to determine if there is a presence of oil deposit in its shorelines.
A. Considering that the agreement covers technical assistance for large scale
exploration studies concerning extraction of oil, is the Memorandum of Agreement
executed by the Mayor valid? Why?
Answer: The MOA is not valid. Only the President can sign it under Section 2,
paragraph 4 of Article XII of the Constitution.
B. Assuming that the Mayor cannot execute the Memorandum of Agreement, can the
Governor of Ilocos Norte sign it? Justify your answer.
Answer: The answer will be the same. The Governor cannot execute the MOA. Only the
President can execute the MOA.

Related Topics:
1. Filipino First Policy –
Cases: Manila Prince Hotel v. GSIS
Heirs of Gamboa v. Sec. Teves (Section 4, Article XII)
IDEALS, Inc. v. PSALM
Resident Marine Mammals v. Sec. Reyes (Paragraph 4, Section 2, Article
XII)
Roy v. SEC Chairman
Oposa v. Factoran (grant of TLA)
La Bugal-B’laan Tribal Association v. Ramos: The Constitutionality of
the Mining Law

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 2. Control and supervision (Funa v. Duque – Duque as Chairman of the CSC cannot
be designated as a member of the Board of GSIS; Joson v. Executive Secretary –
the President exercises supervision over LGUs.)
3. Qualified Political Agency (Resident Marine Mammals v. Secretary Reyes)
4. Mining Permits
5. Timber Licensing Agreements
6. Joint Venture Agreements
7. Subsistence Fishermen
8. Sustainable Development
9. Intergenerational Responsibility

XII.
Fish and Chips is an ideology-based political party fighting for the protection of fishermen
and farmers. It decided to participate in the party-list system. When the election results
were tallied, it obtained 1.9 percent of the votes cast under the party-list system. Pork and
Beans, a contending party list, said that Fish and Chips is not entitled to any seat for failure
to achieve the minimum 2% votes. Fish and Chips argued that since the 20% maximum
threshold of the party members has not been met, it is still entitled to a seat. Which of the
two arguments should be sustained? Justify your answer.
Answer: The argument of Fish and Chips must be sustained. For as long as the number of
party list members has not exceeded 20%, those which obtain less than 2% may still be
accommodated.

Related Topics:
1. Types of members in Congress
2. Ang Ladlad v. COMELEC
3. Ang Paglaum v. COMELEC
4. Abang Lingkod v. COMELEC
5. Lokin v. COMELEC
6. Senior Citizens Coalition v. COMELEC
7. Jurisdiction and Composition of HRET and SET

XIII.
The Supreme Court has made it a practice of announcing in important cases the votes cast
by the members of the Court even if the final printed decision and separate concurring and
dissenting opinions have not been made available to the public. In the highly controversial
quo warranto proceedings against the Vice President to continue assuming the post, the vote
was 8 in favor of the Petition and 7 against it. The following day, however, one of the
justices of the Supreme Court died. The Spokesperson of the Supreme Court announced
that the Court will convene to deliberate the case anew. Roaring Twenties, a group of civic-
spirited citizens belonging to twenty different professions, questioned the act of the Court.
It argued that since the results of the vote had already been announced, the same can no
longer be recalled by the Court.
A. Was the announced 8-7 decision validly promulgated and thus, not subject to recall?

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 Answer: There was no valid promulgation of the decision. The decision must be in
writing and duly certified by the Chief Justice.
B. In the event that a second vote is taken, and the result is 7-7, what is the effect of the
7-7 vote to the pending Petition? Will the status quo be preserved?
Answer: The Petition must be dismissed. Status quo will be maintained. (Isagani Cruz
v. Sec. of the DENR – on the constitutionality of the IPRA)

XIV.
Serena has served the judiciary almost 20 years. Serena is the first cousin of the President
On her 60th birthday, the JBC nominated her to the post of Associate Justice of the
Supreme Court. The President appointed Serena as Associate Justice within the two-month
election ban.
A. Is the appointment of Serena valid considering that it was made during the election
ban? Justify your answer.
Answer: The Court has ruled in De Castro v. JBC the appointments in the judiciary will
not covered by the midnight appointment rule.
B. Assume that instead of appointing Serena to the Supreme Court, the President
appointed her as Secretary of Justice. Is the appointment valid considering that she
is the first cousin of the President?
Answer: The appointment is not valid because this is covered by the rule on nepotism.

Objective Type Questions

1. What is the alter ego doctrine? May an alter ego of the President execute an
agreement with a 100% Korean company covering technical assistance for the large-
scale exploration, development and utilization of an oil mine in Masinloc Bay?

2. Enumerate the officers subject to confirmation by the Commission on Appointments.

3. Distinguish between a party list member and a congressional district representative.

4. Distinguish between the theory of incorporation and the theory of transformation in

the adoption of international law as part of the law of the land.

5. Enumerate the four regular members of the Judicial and Bar Council.

6. Compare and contrast the creation of a congressional district in a city and in a

province.

7. Enumerate the public officers who are allowed under the Constitution to augment any
item in the General Appropriations Act for their respective offices from savings in other
items of their respective appropriation.

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 8. Grounds for Impeachment
9. Distinguish the acts of clemency of the President and the limitations on the exercise of
the powers.
10. Discuss the plain view doctrine.
11. Discuss the Aguinaldo doctrine (condonation of administrative liability/ Ombudsman
Carpio-Morales v. Court of Appeals and Mayor Binay et al.)
12. Discuss the rules on the grant of bail. (General Rule; Exception to the General Rule;
Exception to the Exception: Enrile v. Sandiganbayan)
13. Discuss the elements of double jeopardy. (Ivler v. Hon. San Pedro; People v. Hon.
Relova; Lejano v. People and People v. Webb et al.)
14. What are the rights available to a suspect during custodial investigation. (Miranda
Rights – conditions when one is protected by the rights – (a) personal liberty is
restrained by law enforcers; (b) one is being investigated for a commission of an
offense; and (c) only testimonial evidence may be obtained during the investigation.)
15. What are the stages of expropriation proceedings? (Stages: Determination of authority
to expropriate, public purpose and just compensation; Basis to determine just
compensation (Landbank v. Spouses Puyat); Expansive meaning of just compensation
(Chinese Community v. City of Manila and Manosca v. C.A.); Reckoning date of just
compensation: DPWH v. Spouses Tecson)
16. Elements of the exercise of police power. (Lawful purpose and lawful means (Whitelight
Corporation v. City of Manila); limitations on exercise of police power (JAC Liner v. Lucena
Grand Central Terminal Corp. and Mayor Fernando v. St. Scholastica’s College)

17. Distinguish tax and fees. (Ferrer v. Mayor Bautista)

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